Article 78 – Long Island Land Use and Zoninghttps://www.lilanduseandzoning.com
Mon, 09 Sep 2019 15:20:55 +0000en-UShourly1https://wordpress.org/?v=4.9.11https://lilanduseandzoning.lexblogplatform.com/wp-content/uploads/sites/128/2017/04/cropped-cropped-favicon-32x32.pngArticle 78 – Long Island Land Use and Zoninghttps://www.lilanduseandzoning.com
3232Fourth Department: Interest in Architecture and Historic Preservation Not Sufficient to Confer Standing Under SEQRAhttps://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/
https://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/#respondTue, 03 Sep 2019 14:00:07 +0000https://www.lilanduseandzoning.com/?p=19769In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an … Continue Reading ]]>In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.
Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2019/07-31-19/alpha.shtm.

]]>https://www.lilanduseandzoning.com/2019/09/03/fourth-department-interest-in-architecture-and-historic-preservation-not-sufficient-to-confer-standing-under-seqra/feed/0Appellate Division Affirms Supreme Court Determination Upholding Southampton Town ZBA Decisionhttps://www.lilanduseandzoning.com/2019/08/19/appellate-division-affirms-supreme-court-determination-upholding-southampton-town-zba-decision/
https://www.lilanduseandzoning.com/2019/08/19/appellate-division-affirms-supreme-court-determination-upholding-southampton-town-zba-decision/#respondMon, 19 Aug 2019 10:00:39 +0000https://www.lilanduseandzoning.com/?p=19752By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The … Continue Reading ]]>By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The parcels are 12,495 sf and 54,042 sf respectively, located in the CR-200 zoning district, are nonconforming as to size and the applicant proposed to merge the parcels to allow for the construction of a single family residence. Both vacant parcels have access to Old Sag Harbor Road over a 50 foot wide easement granted to the property in 1949. However, the easement did not provide the requisite “road frontage” under the Code to build the residence. The application was opposed by the neighboring property owners to the north of the parcels who alleged that the properties (i) had merged and were not single and separate, (ii) even as merged were still not entitled to relief under Town Code §330-115D; and (iii) the application did not pass the variance standards for granting relief. The Zoning Board of Appeals granted the variance request finding that:

“the benefit to the applicant outweighs any perceived detriment to the neighborhood or the community. The detriment to the neighborhood, as articulated by Ms. Nowak and Mr. Lombardo, is in the construction of a dwelling on the premises since it will obstruct their views of the vacant, wooded, premises. However, applicant is not before this Board for relief for a building envelope for the dwelling. Rather, applicant requires relief as the premises does not have any road frontage, and there was evidence presented that in fact, there are several properties in the neighborhood that have received relief from this Board for reduced road frontage, and a review of the tax map confirms several flag lots in the neighborhood. As such, it is likely that the granting of relief will have no discernible impact on the neighborhood. Likewise, this Board notes that it was presented to this Board that the two lots will merge, resulting in a larger (though still nonconforming) lot in this CR-200 zoning district—one that is larger in size than that of Ms. Nowak’s. Therefore, Board finds that there is no detriment to the community here in granting 0 feet road frontage to the premises and that there is a great benefit to the applicant since securing the variance is necessary in order to build on the premises.”

The neighboring property owners brought an Article 78 Proceeding challenging the Zoning Board of Appeals approval entitled, Nowak v. Town of Southampton Zoning Board of Appeals et al., Supreme Court Suffolk County, Index No. 376/2016. By decision dated November 2, 2016, the Honorable Joseph C. Pastoressa, J.S.C. denied the petition and dismissed the proceeding. Petitioner’s primary argument was that respondents were not entitled to a variance because the two lots had merged for zoning purposes and were not entitled to be treated as nonconforming lots under the Code. Specifically, Town Code §330-115D provides that a “nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot…” Regardless, the Court found Petitioner’s argument unpersuasive stating, “even if the two lots did merge, the Town Code provides that, if a nonconforming lot “shall thereafter be held in the same ownership as an adjoining parcel, it shall lose its status as a nonconforming lot, except to the extent that the lot created by the merger of the two parcels shall remain nonconforming in the same respect..” Thus, the Court determined that the two parcels, as merged comprised of 66,537 sf, well below the required 200,000 sf in the CR200 zoning district, were still nonconforming and entitled to relief under Town Code §330-115.

Petitioners appealed the determination to the Appellate Division, Second Department in Matter of Ann L. Nowak v. Town of Southampton et al.,decided July 31, 2019. The Appellate Division affirmed the Supreme Court’s determination and found that the ZBA’s determination to grant the area variance allowing zero feet of road frontage for the subject properties had a rational basis.

A recent Supreme Court decision, In the Matter of Preserve Our Brooklyn Neighborhoods v. City of New York, demonstrates the difficulty a litigant faces when challenging a zoning determination on constitutional grounds. The petitioners are “an incorporated association of community members” from the Fort Greene area of Brooklyn (the “Petitioners”), who oppose proposed development in their community in the interest of preserving its historical character. The respondents are the City of New York (the “City”) and the developers for the proposed project.

In June of 2018, the City Council passed a resolution which changed the zoning regulations in the Fort Greene community, as well as an area adjacent to it known as the Special Downtown Brooklyn District (the “SDBD”). The SDBD “was established in 2001 ‘to provide a transition between the ever expanding downtown commercial core of Brooklyn and the low rise community of Fort Greene.'” Fearing that development in Fort Greene and its surrounding areas would jeopardize the historical significance and character of the community, the Petitioners brought an action under Article 78 of the New York Civil Practice Law and Rules (“CPLR”) challenging the resolution.

The Petitioners asserted that the City Council’s decision to pass the resolution was “arbitrary, capricious and violative of law, constituting unlawful spot zoning,” and that the resolution violated both State and City environmental laws. Unfortunately for the Petitioners, their CPLR Article 78 challenge was time-barred by the four-month statute of limitations applicable to such actions. However, as the Court noted, the Petitioners’ action was more than just a typical challenge to an administrative determination. Here, because the resolution’s constitutionality was at issue, the four-month limitations period could not serve as a bar to the action in its entirety. As such, the Court considered the Petitioners’ contention that the resolution was unconstitutional spot zoning.

Before addressing the merits of the Petitioners’ claim, the Court noted the standard applicable to constitutional challenges to zoning. Because “[z]oning is a legislative act, . . . it is presumptively constitutional (Asian Americans for Equality v. Koch, 72 NY2d 121 [1988]).” Accordingly, a party challenging a zoning regulation on constitutional grounds must establish “unconstitutionality beyond a reasonable doubt,” and “[a] zoning resolution will be upheld if ‘there is a reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end’ (id at 132 quoting McMinn v. Town of Oyster Bay, 66 NY2d 544 [1985] [internal quotations omitted]).” This is an extremely high standard to meet.

The Petitioners’ constitutional claim rests on the argument that the resolution constitutes “spot zoning,” which the Court of Appeals has defined as “‘the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners’ (Rodgers v. Tarrytown, 302 N.Y. 115, 123, 96 N.E.2d 731, 734 [1951]).”

The Court here found it undeniable that the development plans in the resolution were “well-considered” and “calculated to serve the general welfare of the community,” and the Petitioners failed to demonstrate otherwise. Although the Petitioners raised their personal concerns regarding the historical character of the Fort Greene area, they failed to establish a legally significant argument as to why the resolution was unconstitutional. The Court swiftly rejected Petitioners’ claim that the resolution was unconstitutional spot zoning simply by virtue of the fact it would provide a financial benefit to the developers of the proposed project. The Court said that such financial gain “is the very nature of capitalism,” and that fact alone does not constitute spot zoning. As the Court stated, the Petitioners’ “mere dissatisfaction” with the resolution and the proposed development is not sufficient grounds to strike down a zoning law as unconstitutional. The Petitioners failed to show that the resolution was unconstitutional beyond a reasonable doubt, and therefore, their challenge was rejected and their petition denied.[1]

When considering a zoning challenge on constitutional grounds, it is important to be cognizant of the high bar a litigant must satisfy, and understand that without sufficient evidence demonstrating unconstitutionality, such a challenge is unlikely to succeed.

[1] The Petitioners appealed the Supreme Court’s decision to the Appellate Division, First Department on July 2, 2019, and that appeal is currently pending.

]]>https://www.lilanduseandzoning.com/2019/07/29/constitutional-challenges-to-zoning-subject-to-very-high-standard/feed/0Applicant’s Failure To Include Information About The Whole Project On The Site Plan Ends Up In Remand To Planning Boardhttps://www.lilanduseandzoning.com/2019/07/22/applicants-failure-to-include-information-about-the-whole-project-on-the-site-plan-ends-up-in-remand-to-planning-board/
https://www.lilanduseandzoning.com/2019/07/22/applicants-failure-to-include-information-about-the-whole-project-on-the-site-plan-ends-up-in-remand-to-planning-board/#respondMon, 22 Jul 2019 09:00:09 +0000https://www.lilanduseandzoning.com/?p=19656

A recent decision from the Supreme Court of Warren County, John Carr v. Village of Lake George Village Board, demonstrates how a simple omission on a site plan approval application can upend an approved project, even though the municipality wants the project and enacted a local law to smooth the pathway for its approval.

A recent decision from the Supreme Court of Warren County, John Carr v. Village of Lake George Village Board, demonstrates how a simple omission on a site plan approval application can upend an approved project, even though the municipality wants the project and enacted a local law to smooth the pathway for its approval.

James Quirk (Quirk) owns property in the Village of Lake George (Village). In February 2018, Quirk applied to the Village Zoning Board of Appeals (ZBA) for variances to construct a 12,000 square foot boat storage facility. Quirk also owns an adjacent parcel, on which there is a laundromat and for which he previously received approval from the ZBA for outdoor boat storage. Petitioner John Carr (Petitioner) owns two parcels that are adjacent to the parcel where Quirk wants to construct the boat storage facility.

Quirk requests an area variance from the rear set-back requirement for the 12,000 square foot facility and variances from the Village’s mandatory Architectural Standards and Guidelines (Architectural Guidelines) regarding roof pitch and building materials. The ZBA granted these variances in April 2018.

Petitioner then sued to annul the ZBA determination, which proceeding was resolved by Stipulation and Order dated June 18, 2018, whereby the ZBA determination was without prejudice to the filing of future applications for the variances.

On July 16, 2018, the Village Board adopted Local Law No. 8 of 2018, which permits waiver of the mandatory Architectural Guidelines by the Village Planning Board (Planning Board) during Site Plan Review, provided it is proven there will be no adverse impact on the ‘architectural character’ of the neighborhood. Local Law No. 8 provides that the criteria for assessing a waiver are the same as those used for area variance reviews.

In August 2018, Quirk again applied to the ZBA for the 9-foot area variance from the rear set back requirement of 15 feet. He also applied to the Planning Board for site plan approval for the boat storage facility, including a request under Local Law No. 8 for waivers from the Architectural Guidelines relating to (1) a 14-foot ceiling height restriction so that he can build a one-story 40-foot tall building, (2) a requirement that metal siding cannot be used on any portion of a building so that he can use metal siding for the entire building, (3) a requirement for a gabled roof so that he can construct a flat-roof structure, and (4) an 18-inch width eave requirement so that he can have eaves that are 7.25 inches wide.

The ZBA granted the rear set-back area variance at its meeting on September 5, 2018 , but at its meeting on November 7, 2018 , the ZBA announced that its September 5th determination was a nullity because it did not have the Warren County Planning Board’s report as required by § 220-82 of the Village Code at the time it approved the variance. That report was issued before the November 7th meeting and it indicates the application would have no county-wide impact. As a result, at the November 7th meeting, the ZBA issued a new decision granting the rear set-back area variance.

At its meeting on January 16, 2019 , the Planning Board granted the requested waivers under Local Law No. 8 and approved the site plan.

The Lawsuits

Petitioner brought two separate lawsuits. The first proceeding was commenced on October 2, 2018, and seeks to annul, vacate and set aside Local Law No. 8, enjoin the Planning Board from granting any waivers pursuant to Local Law No. 8 and set aside the area variance issued by the ZBA. The second proceeding was commenced on February 15, 2019, and seeks to annul, vacate and set aside the waivers and the site plan approval issued by the Planning Board. Both matters are handled together in one decision, order and judgment issued May 29, 2019, and entered June 28, 2019.

The First Proceeding

As to the first proceeding, the trial court began by noting in its opinion that:

Village Law § 7-712-b(3)(a) gives the ZBA the power to grant area variances

Village Law § 7-712-b(3)(b) sets out the specific factors the ZBA can consider in making variance determinations

Village Law § 7-712-b(3)(c) specifies that the ZBA shall grant the minimum variance it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and health, safety and welfare of the community.

The trial court then cited to Matter of Cohen v Board of Appeals of the Vil. Of Saddle Rock, 100 NY2d 395, 401-402 [2003], which determined that Village Law § 7-712-b preempts municipalities from enacting area variances criteria different that those contained in the Village Law. Turning to the Village’s Architectural Guidelines, contained in § 220-42 of the Village Code, the trial court noted they set forth dimensional and physical requirements related to building orientation, setbacks, and relationship to street level, building proportion and size, building materials and colors, and roof design. Relying on Matter of Lockport Smart Growth, Inc. v Town of Lockport, 63 AD3d 1549 [4th Dept 2009], lv denied 14 NY3d 704 [2010], which discussed the relationship between Town Law provisions that are similar to Village Law §§ 7-725-a(3) and (5), the trial court found Local Law No. 8 to be permissible under Village Law § 7-725-a(5).

The trial court then reviewed the challenge to the enactment of Local Law No. 8. It rejected Petitioner’s claim that the enactment violates SEQRA, finding that the Village Board properly classified the enactment as an unlisted action and completed a short form environmental assessment form (EAF) that properly determined that Local Law No. 8 will not result in any significant adverse environmental impacts.

The trial court also rejected Petitioner’s claim about the ZBA failing to comply with SEQRA when it approved the area variance. The trial court noted that the application for an individual set back variance was properly classified as a Type II action, and thus, did not require any further SEQRA review.

The trial court then rejected Petitioner’s claims that the ZBA did not apply the statutory criteria applicable to area variances. These five criteria, found in Village Law § 7-712-b(3)(b), include

Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting the area variance;

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

Whether the requested area variance is substantial;

Whether the proposed variance will have an adverse effect of impact on the physical or environmental conditions in the neighborhood or district; and

Whether the alleged difficulty was self-created.

The trial court noted that the ZBA addressed four of the five criteria in its written decision and discussed the fifth criteria at its November 2018 hearing. Petitioner appeared at both the September and November 2018 hearings and presented documentary evidence and arguments that he claimed showed that the proposed boat storage facility was a substantial project. The trial court rejected Petitioner’s claims, noting that the ZBA appropriately considered the required criteria and that its decision was neither arbitrary, irrational or an abuse of discretion.

The trial court also ruled that Petitioner had standing because his properties are affected by Local Law No. 8 and rejected Respondents’ lack of ripeness argument, noting that the adoption of Local Law No. 8 is a definitive position which inflicted an actual, concrete injury to Petitioner and other similarly situated landowners in the Village. And, no further administrative action is available to address the claimed harm. The trial court also rejected Petitioner’s claim that the variance must be annulled because of Quirk’s failure to pay the application fee, noting that the Village Zoning Code does not even suggest that as a basis to deny an application.

The Second Proceeding

As to its ruling on the second proceeding, the trial court rejected Petitioner’s claim that the enactment of Local Law No. 8 violates Village Law §7-712-b, citing to its analysis in the first proceeding. As to the claim that the Planning Board failed to comply with SEQRA in granting the waivers, the trial court rejected Petitioner’s assertion that a separate SEQRA review is needed for each of the individual waivers sought, noting that would be unnecessarily burdensome and the waiver requests are arguably Type II actions that do not require SEQRA review.

The trial court then evaluated Petitioner’s claim that the Planning Board improperly segmented its SEQRA review. The trial court found that the Planning Board declared the site plan approval application as an unlisted action, completed a full EAF, and issued a negative declaration for the full project, including in its review both the boat storage facility lot and the outdoor boat storage lot. However, crucial to the court’s analysis is the fact that the site plan application for the storage facility did not include any information about the plans for the laundromat lot. That omitted information caused the trial court to remand the matter to the Planning Board for further SEQRA review of the whole project.

As to the remaining causes of action, the trial court rejected Petitioner’s claims that the waivers violated Local Law No. 8 or that the proposed project does not meet the site plan review criteria found in the Village Zoning Ordinance, noting it is not the role of the court to second-guess a reasoned administrative agency’s determination that is otherwise supported in the record. As to the last cause of action, that the square footage of the proposed facility violates the square footage limitation of an accessory structure, the trial court rejected this as well, noting that the Planning Board made no such determination, and Petitioner did not request any determination by the ZBA or Planning Board about this supposed zoning violation. Thus, the court noted this issue is not properly before it.

The Bottom Line

Unfortunately for Quirk, while he prevailed on every claim asserted by Petitioner against the ZBA, and on every claim except one asserted against the Planning Board, the one claim that slipped him up was something in his control – the contents of his site plan application. As a result, he is now facing a remand of his application and will need to go through the process yet again.

]]>https://www.lilanduseandzoning.com/2019/07/22/applicants-failure-to-include-information-about-the-whole-project-on-the-site-plan-ends-up-in-remand-to-planning-board/feed/0The Appellate Division, Third Department, Holds a Brewpub May Be an Accessory Use to a Golf Coursehttps://www.lilanduseandzoning.com/2019/07/15/the-appellate-division-third-department-holds-a-brewpub-may-be-an-accessory-use-to-a-golf-course/
https://www.lilanduseandzoning.com/2019/07/15/the-appellate-division-third-department-holds-a-brewpub-may-be-an-accessory-use-to-a-golf-course/#respondMon, 15 Jul 2019 10:24:15 +0000https://www.lilanduseandzoning.com/?p=19635While the Town of Halfmoon (“Town”) in Saratoga County, New York, may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute an … Continue Reading ]]>While the Town of Halfmoon (“Town”) in Saratoga County, New York, may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute an accessory use or a separate commercial business. The Appellate Division, Third Department, heard appeals from both an order and a judgment of the Supreme Court, Saratoga County, which denied a preliminary injunction and dismissed a petition to annul the site plan amendment and special use permit for the brewpub.

The Golf Course, Plans for the Brewpub and the Opposition

The Fairways of Halfmoon, LLC (“Fairways”) operates a golf course with a clubhouse, pro shop, restaurant, bar and banquet house on property zoned within the Town’s Agriculture-Residence zoning district (“ARD”). In 1999, Fairways obtained site plan approval and a special use permit for the improvements on the property. Eighteen years later, in 2017, Fairways sought a site plan amendment and special use permit to, among other things, build an addition to the existing bar and restaurant to brew beer for patrons’ purchase and consumption. Two neighbors opposed the application and argued the brewpub was not a permitted use in the ARD and would negatively affect the character of the neighborhood.

The Town’s engineer characterized the brewpub as a Type II Action under the State Environmental Quality Review Act (“SEQRA”), for which no environmental review is required. The Town Planning Board (“Planning Board“) used the same characterization throughout the application review process. However, in its May 2017 resolution amending the site plan (with conditions) and granting the permit, the Planning Board inexplicably denoted the brewpub as an Unlisted Action (which requires environmental review under SEQRA) and issued a negative declaration (finding no significant environmental impact). The neighbors argued that these inconsistent project classifications and analyses, among other things, constitute noncompliance with SEQRA, and therefore the approvals must be annulled.

One of the neighbors submitted an interpretation request to the Town’s Director of Code Enforcement (“Director”) asking whether a brewpub could be built within the ARD and in conformance with the Town Code. The Director issued a responsive letter concluding the Town Code did not speak to where a building could be constructed. In addition, the Director issued a second letter advising that the Town’s Code Enforcement Office does not address zoning issues and that such questions must be directed to the Planning Board. The neighbor appealed the Director’s determinations to the Town Zoning Board of Appeals (“ZBA”), which upheld them in a September 2017 decision.

The Challenges, the Case and the Resolution

The neighbors commenced two Article 78 proceedings; the first challenged the Planning Board’s decision to amend the site plan and issue the special permit and alleged SEQRA violations, and the second challenged the ZBA’s decision to uphold the Director’s determinations. These two cases were consolidated. In addition, the neighbors sought a preliminary injunction barring construction of the brewpub during the pendency of litigation.

The Supreme Court issued an order (“Order“) denying the preliminary injunction. Fairways proceeded with construction of the brewpub throughout the litigation and, during appeal, would argue the challenges should be dismissed on the grounds of mootness and laches because the brewpub was substantially complete. Ultimately, the Supreme Court issued a final judgment (“Judgment“) dismissing the consolidated proceedings. The neighbors appealed from both the Order and the Judgment.

The Appellate Division dismissed the appeal from the Order denying the preliminary injunction because no appeal lies as-of-right from a non-final order in an Article 78 proceeding. The appeals court noted that the neighbors could have raised the denial of injunctive relief on their appeal from the Judgment, but they failed to brief those issues on appeal from the Judgment, so these issues were abandoned.

Substantial Completion Does Not Necessarily Moot a Claim; No Laches

Regarding the appeal from the Judgment, Fairways argued they had substantially completed the brewpub, and so the appeal was moot. The Appellate Division rejected Fairways’s mootness argument because: (i) substantial completion does not necessarily render an appeal moot; (ii) the brewpub addition could be razed or the brewing operations enjoined within it; (iii) the neighbors promptly challenged the approvals and moved for preliminary injunctive relief; and (iv) the Supreme Court made clear that injunctive relief remained a possibility and Fairways should be incentivized to limit construction activity in the meantime. Accordingly, Fairways was on notice that its construction of the brewpub was at its own risk and the appeal was not moot. The Appellate Division also denied Fairways’s claim of laches, finding that there was no prejudicial neglect in the neighbors promptly asserting their claims.

Turning to the merits, the Appellate Division addressed: (i) the Planning Board’s SEQRA review; (ii) the Planning Board’s approval of the brewpub; and (iii) the ZBA’s decision to uphold the Director’s determinations.

SEQRA Sufficed by Substance over Form

With respect to SEQRA, the Planning Board proffered clerical error as their excuse for the inconsistent SEQRA nomenclature and process – having characterized the brewpub project as a Type II Action throughout review, yet resolving to classify the brewpub as an Unlisted Action and issuing a negative declaration. The appeals court held that, even if there was no clerical error, the Planning Board’s review sufficed SEQRA for purposes of reviewing an Unlisted Action. The short form environmental assessment form gave no reason for concern. The Town’s engineer opined that no further environmental review was necessary. And, the Planning Board solicited input from the community, public safety officials and interested agencies.

The review process established the brewpub project was limited in scope and confined to already disturbed areas around the clubhouse. Furthermore, the conditions imposed upon the amended site plan addressed the few potential environmental impacts, i.e. parking, ingress/egress and disposal of brew byproducts. The Appellate Division concluded:

“[A]lthough it might have been better for the Planning Board to set forth a more reasoned elaboration for the basis of its determinations, this particular record is adequate for us to exercise our supervisory review to determine that the Planning Board strictly complied with SEQRA procedures applicable to unlisted actions, and the negative declaration it made is supported by a rational basis in the record.”

Limited Brewing is Attendant to the Operations of the Golf Course

Next, the Appellate Division addressed whether the Planning Board’s approvals were arbitrary and capricious. The ARD permits “private or public recreation or playground areas, golf clubs, country clubs or other open recreation uses” as special uses, but does not permit “commercial facilities or amusement parks.” Fairways held a special permit for a restaurant, bar and banquet house attendant to its golf club since the 1990s, and sought to add the brewpub as an extension of the bar and restaurant (with additional space for it). Fairways represented its brewer’s license limited retail beer sales to customers on-site and would not exceed 400 kegs per year. The appeals court concluded:

“Inasmuch as the clubhouse bar selling alcohol to customers is a permissible special use [in the ARD] as an attendant use to a golf club, the Planning Board had no obligation to, sua sponte, refer the matter to the ZBA for a superfluous interpretation as to whether an affiliated brewpub making similar sales of its own beer at the same site under the same liquor license was a prohibited commercial facility.”

The Planning Board reviewed the requisite factors set forth in the Town Code and allowed the brewpub – with conditions intended to minimize its negative impacts on neighbors and to ensure its functionality as a permitted amenity to the golf club, rather than a stand-alone business. This determination is rational.

Vague Inquiries to Code Enforcement and the ZBA Do No Warrant Judicial Review

Lastly, the Appellate Division considered the challenge to the ZBA’s decision to uphold the Director’s determinations, which the Supreme Court declined to rule on. The Appellate Division found that the challenged decision arose from a vague question posed by the neighbor to the Director, i.e. as to whether a generic brewpub could ever be built within the ARD in accordance with the zoning ordinance. It also noted that the ZBA agreed with the Director’s determinations. Because the ZBA’s decision had no connection to either the Planning Board’s approvals for the brewpub or the issuance of the building permit for the same, addressing this claim would have no immediate and practical consequence for the parties and would effectively be an advisory opinion. Therefore, the Supreme Court properly declined to consider it.

The Hank Hudson Brewing Co., founded by two high school teachers, opened at the golf course in the fall of 2018. Cheers.

]]>https://www.lilanduseandzoning.com/2019/07/15/the-appellate-division-third-department-holds-a-brewpub-may-be-an-accessory-use-to-a-golf-course/feed/0Negative Declaration SEQRA Review Upheld for Fairway Manor Expansion in Town of Isliphttps://www.lilanduseandzoning.com/2019/06/24/supreme-court-suffolk-county-upholds-seqra-review-for-fairway-manor-expansion-in-town-of-islip/
https://www.lilanduseandzoning.com/2019/06/24/supreme-court-suffolk-county-upholds-seqra-review-for-fairway-manor-expansion-in-town-of-islip/#respondMon, 24 Jun 2019 10:00:23 +0000https://www.lilanduseandzoning.com/?p=19589Fairway Manor, a senior rental housing complex for ages 55 and older, located on the border of Blue Point and Bayport, was created in 1991 when the Town Board of the Town of Islip approved a change of zone application on a 70 acre parcel (with 45.6 acres located in the Town of Islip and the remainder located in the … Continue Reading ]]>Fairway Manor, a senior rental housing complex for ages 55 and older, located on the border of Blue Point and Bayport, was created in 1991 when the Town Board of the Town of Islip approved a change of zone application on a 70 acre parcel (with 45.6 acres located in the Town of Islip and the remainder located in the Town of Brookhaven) to construct a 394 unit senior citizen residential development. The project was deemed a Type I action pursuant to the New York State Environmental Quality Review Act (“SEQRA”) and an Environmental Impact Statement (“EIS”) was completed. As part of the original approval, a covenant was recorded limiting the number of units to 394 for the portion of the property located in Islip and requiring 21.72 acres to become a 9-hole golf course or remain open space.

In 2014, Fairway Manor applied to the Town of Islip for a change of zone to amend the covenants and restrictions on the property seeking to build an additional 260 units which was above the residential density permitted on the property. Thereafter, the application was reduced to construct 156 units on the east side of John Avenue, just south of Sunrise Highway in Bayport, which complied with the Town of Islip’s zoning code for the maximum residential density of 12 units per acre. Approximately 13 acres were proposed to remain open space. In response, Fairway Manor submitted a short form Environmental Assessment Form in connection with its application. The Blue Point Community Civic Association objected to the application, arguing, in part, that the project should not be permitted to expand into the original 21 acres of open space.

An initial public hearing was held before the Town Board in 2014 where the Board, pursuant to referral recommendations from the Planning Board, reserved decision for further review of the project and kept the public hearing record open. In March of 2017, the Planning Board held a public hearing and sought additional information from the applicants. In response, Fairway Manor submitted a comprehensive traffic impact review and waste and sewage treatment plan to expand and improve the capacity of its existing sewage treatment facility. The Planning Board recommended approval to the Town Board. On July 27, 2017, the Town Board held another public hearing and, regardless of the opposition, adopted a resolution adopting a negative declaration pursuant to SEQRA and approving the application.

Petitioners, the Blue Point Community Civic Association, Inc., brought a hybrid Article 78 Proceeding/Declaratory Judgment action alleging that a positive declaration should have been adopted in connection with the application and an EIS prepared. Specifically, petitioner’s action sought (a) to declare that the Town Board resolution issued on July 27, 2017 granting approval was issued in violation of the SEQRA and as a result was void ab initio; (b) to vacate the Town Board resolution as unlawful, arbitrary and capricious, an abuse of discretion and unsupported by substantial evidence; (c) to remand the matter to the Town Board with a direction to make a finding of significant adverse environmental impact and requiring the preparation of an EIS; (d) to enjoin the Town respondents from issuing, granting, awarding or otherwise authorizing any site-plan approval, permit, license or other approval based upon the resolution; and (e) an award of costs and disbursements.

“SEQRA contains no provision regarding judicial review, which must be guided by standards applicable to administrative proceedings generally: “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see, Matter of City of Schenectady v Flacke, 100 AD2d 349, 353, lv denied 63 NY2d 603; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862). In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.

More particularly, in a case such as this, courts may, first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination (Aldrich v Pattison, 107 AD2d 258, 265, supra; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805, supra; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.”

After reviewing the record before the Planning Board and Town Board the Court held that both boards considered all of the statutory factors and used the requisite balancing test under SEQRA. Therefore, the SEQRA review was upheld and the matter was dismissed.

]]>https://www.lilanduseandzoning.com/2019/06/24/supreme-court-suffolk-county-upholds-seqra-review-for-fairway-manor-expansion-in-town-of-islip/feed/0Time-Frames for Prosecuting an Article 78 Challenge May Be Shorter Than You Thinkhttps://www.lilanduseandzoning.com/2019/05/28/time-frames-for-prosecuting-an-article-78-challenge-may-be-shorter-than-you-think/
https://www.lilanduseandzoning.com/2019/05/28/time-frames-for-prosecuting-an-article-78-challenge-may-be-shorter-than-you-think/#respondTue, 28 May 2019 10:41:48 +0000https://www.lilanduseandzoning.com/?p=19531

In Rimler v. City of New York, 2019 N.Y. Slip Op. 03599 (2d Dept, May 8, 2019), which involved a challenge to the issuance of a negative declaration, the Appellate Division, Second Department, affirmed a judgment of the Supreme Court, Kings County, granting respondents’ motion to dismiss the petition and denying the petitioners’ cross-motion to extend the time to serve process nunc pro tunc. The subject project (“Project”) involved a mixed-use development in downtown Brooklyn, i.e. the sale and redevelopment of a site at the intersection of Cadman Plaza West, Clinton Street and Tillary Street (“Site”). The City of New York (“City”) owned the Site, which previously contained a two-story branch of the Brooklyn Public Library (“Library”). The Project required the demolition of the Library building, followed by the construction of a 36-story building with below-ground parking, a new Library branch, a small amount of retail space and apartments.

The City Mayor’s Office of Sustainability (“MOS”) was designated the lead agency for environmental review under the State Environmental Quality Review Act and the Rules of the City governing City Environmental Quality Review. Following the MOS’s preparation of an environmental assessment, MOS issued a negative declaration on June 12, 2015, which determined that the project would not have a significant adverse impact on the environment and that an environmental impact statement was not required. In addition, the Brooklyn Public Library, the City Department of Citywide Administration and the developer, Cadman Associates, LLC, applied to the City Planning Commission for approval of the Project because it involved the sale of City-owned land and was, therefore, subject to the City’s Uniform Land Use Review Procedure. After public hearings, the City Planning Commission approved the Project on November 2, 2015. Thereafter, the City Council held a public hearing and, ultimately, approved the Project on December 16, 2015.

The petitioners commenced their Article 78 proceeding challenging the City’s negative declaration by filing their petition on April 15, 2016, and served the petition upon the respondents between May 13 and May 23, 2016. The respondents moved to dismiss the petition on the ground that the petition was untimely served. The petitioners cross-moved, pursuant to CPLR Section 306-b, for an extension of time, nunc pro tunc, to serve the petition to the dates it was served. The Supreme Court denied petitioner’s motion to extend time to serve, granted respondents’ motion to dismiss, and held that the petition should also be denied on the merits. The petitioners appealed and the Appellate Division affirmed.

Although the petitioners timely commenced their challenge within the four-month statute of limitations, by filing on April 15, 2016, when the statute expired on April 16, 2016,[1] the petitioners failed to timely serve their petition. Ordinarily, pleadings must be served within 120 days after the filing thereof; however, CPLR Section 306-b requires that where the applicable statute of limitations is four months or less, service of the pleadings shall be made no later than 15 days after the expiration of the state of limitations. Here, the statute expired in mid-April, the time within which to serve the petitioner expired 15 days later – in early May, and the petitioners did not serve their petition until the end of May.[2]

While CPLR Section 306-b does allow for an extension of the time to serve, the Supreme Court and the Appellate Division held that the petitioners did not meet their burden to earn an extension. Courts, within their discretion, may give an extension “upon good cause shown or in the interest of justice.” The Appellate Division noted that where a party fails to attempt timely service, good cause cannot exist. Because there was no evidence in the record that the petitioners even attempted service prior to the expiration of the 15 days, good cause did not exist to justify the extension.

Additionally, the Court discussed other considerations in deciding whether to grant the extension. Even though a party need not establish reasonably diligent efforts at service, Courts may consider diligence generally – or lack thereof – together with other relevant factors, including expiration of the statute of limitations, meritorious nature of the claims, length of delay in service, promptness of the request for an extension and prejudice to the opposing party. The Appellate Division agreed with the Supreme Court that the petitioners also failed to proffer meritorious claims in their petition, and that the MOS fulfilled its review obligations.

This decision is a reminder that an Article 78 petitioner must not only be mindful of the statute of limitations, but must also be aware of the timely service requirements of CPLR 306-b.

[1] April 16, 2016, was a Saturday, and so the statute of limitations technically extended through to Monday, April 18, 2019. See N.Y. Gen. Constr. Law § 25-a(1) (“Where any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or public holiday, such act may be done on the next succeeding business day . . . .”).

A recent case from the Appellate Division, Second Department, addresses one of our favorite topics, standing. It is a cautionary tale about how not to establish standing.

Tilcon New York, Inc. v Town of New Windsor involved a hybrid proceeding in which the plaintiff/petitioner asserted nine separate causes of action. The appellate court determined that plaintiff/petitioner lacked standing on each of the causes of action, resulting in the dismissal of the petition/complaint.

The case stems from a 2013 lease between Jointa Lime Company (Jointa) and the Town of New Windsor (Town) for Town-owned property. The lease expired in April 2016. Prior to the lease expiring, Jointa requested that it become a month-to-month tenant and the Town agreed, with the proviso that the Town could terminate the tenancy on 30-days’ notice. Jointa remained in possession after April 2016 and the Town continued to accept the monthly rent payments.

In May 2016, Tilcon New York, Inc. (Tilcon) commenced the hybrid proceeding. Tilcon is a business competitor of Jointa. Tilcon claimed that the month-to-month holdover tenancy violated Town Law §§ 29(11) and 64(2), General Municipal Law (GML) §§ 51 and 103 and the State Environmental Quality Review Act (SEQRA).

On appeal, the Appellate Division determined that Tilcon lacked standing on all of its asserted claims. First, the appellate court explained that standing requirements “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case” and that “each element must be supported in the same way as any other matter on which the plaintiff bears the burden.” The appellate court further noted that in order to sustain a challenge to a governmental action, a plaintiff/petitioner must show “it will suffer direct harm, injury that is in some way different from that of the public at large,” and that the alleged in-fact injury “falls within the zone of interests, or concerns, sought to be promoted or protected by the statutory provisions under which the agency has acted.” The appellate court also noted that “a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue” even if the “issue may be one of vital public concern.”

With these principles in mind, the appellate court then turned to the myriad of causes of action asserted by Tilcon against the Town.

Tilcon claimed that the Town violated Town Law §§ 29(11) and 64(2) by failing to comply with statutory requirements applicable to leasing. The appellate court found that Tilcon “failed to describe any injury to itself, either actual or potential, that has resulted from these alleged violations, much less an injury different from the general injury to the public at large that results from the Town’s alleged violation of the procedural requirements for leasing real property.” The court further noted that Tilcon, at best, may have suffered increased business competition, which the court found was insufficient to support standing.

The appellate court next dealt with the claims asserted against the Town Zoning Board of Appeals (ZBA). The appellate court noted that Tilcon was not a party to those proceedings and the decision was not adverse to Tilcon. As a result, the court found that Tilcon lacked standing for the claim asserted against the ZBA because “Tilcon failed to demonstrate it suffered an injury-in-fact distinct from the public at large.”

The appellate court next turned it focus to the claims made under SEQRA. It noted that “a generalized interest in the environment” was insufficient to establish standing under SEQRA. Similarly, the court found that Tilcon only alleged economic injury, and did not allege any environmental injury that was different from the public at large. As a result, Tilcon lacked standing to assert claims under SEQRA.

The appellate court also rejected Tilcon’s GML § 51 challenge. Tilcon was found not to have standing under that section, which “authorizes taxpayer suits to prevent waste, collusion, fraud, or other illegal acts” because Tilcon failed to include any such allegations. Rather, at most, the court noted that Tilcon may have alleged a failure to follow statutory procedure, which “does not constitute the fraud or illegality necessary to support a taxpayer action pursuant to section 51.”

Finally, the appellate court rejected Tilcon’s claims for common-law taxpayer standing. That type of claim is reserved for challenges to “important governmental actions” where “the failure to accord such standing would be in effect…an impenetrable barrier to any judicial scrutiny of legislative action.” Here, the month-to-month holdover lease was found not to be of “appreciable public significance beyond the immediately affected parties.”

This case makes it abundantly clear that standing is an essential element of challenges to municipal determinations. A petitioners needs to show more than dissatisfaction with the municipal decision. It has to explain in detail how it is injured, how its injury is different from the public at large and how it falls within the zone of interests sought to be protected by the statute under which the municipality acted. Failure to make this factual showing will doom a challenge on standing grounds.

]]>https://www.lilanduseandzoning.com/2019/05/20/lack-of-standing-once-again-dooms-a-challenge-to-municipal-action/feed/0Zoning Boards Cannot Render Determinations Absent Jurisdiction and Not All Violations of the Open Meetings Law Justify Annulment or Awardhttps://www.lilanduseandzoning.com/2019/05/06/zoning-boards-cannot-render-determinations-absent-jurisdiction-and-not-all-violations-of-the-open-meetings-law-justify-annulment-or-award/
https://www.lilanduseandzoning.com/2019/05/06/zoning-boards-cannot-render-determinations-absent-jurisdiction-and-not-all-violations-of-the-open-meetings-law-justify-annulment-or-award/#respondMon, 06 May 2019 09:50:22 +0000https://www.lilanduseandzoning.com/?p=19491The Appellate Division, Second Department, in Chestnut Ridge Associates, LLC v 30 Sephar Lane, Inc. 169 A.D.3d 995, 2019 N.Y. Slip Op. 01388 [2d Dept 2019], modified a decision of the Supreme Court, Rockland County, which, inter alia, annulled a determination of the Village of Chestnut Ridge (“Chestnut Ridge”) Zoning Board of Appeals (“Chestnut Ridge ZBA… Continue Reading ]]>The Appellate Division, Second Department, inChestnut Ridge Associates, LLC v 30 Sephar Lane, Inc. 169 A.D.3d 995, 2019 N.Y. Slip Op. 01388 [2d Dept 2019], modified a decision of the Supreme Court, Rockland County, which, inter alia, annulled a determination of the Village of Chestnut Ridge (“Chestnut Ridge”) Zoning Board of Appeals (“Chestnut Ridge ZBA”) and awarded costs and attorneys’ fees for violations of New York’s Open Meetings Law. The appeals court affirmed the trial court’s finding that the Chestnut Ridge ZBA’s determination should be annulled because it was without jurisdiction to consider whether a use variance is required; however, the appeals court reversed the trial court’s decision to award costs and attorneys’ fees for a violation of New York’s Open Meetings Law because an improperly noticed meeting was open to the public and the ultimate determination was adopted at a publicized, public meeting.

The facts of this case, set forth in great detail by the trial court, are quite provocative. In 2007, Steve’s Lawn, Inc. and 30 Sephar Lane Corp. (collectively, “Steve’s”) purchased the subject property (“Property”), which hosts a landscaping business. The Property is zoned within the LO (Laboratory-Office) District, the use provisions for which have been interpreted to permit landscaping businesses (i.e. landscaping storage as an accessory use to an office). Notably, more than a dozen landscaping businesses operate within this district and without municipal interference.

Directly across the street, Chestnut Ridge Associates, LLC (“Associates”) owns a largely vacant 14.6-acre parcel. Associates has been unsuccessfully seeking to develop its parcel for more than two decades, and invested $90,000,000 towards these efforts. Apparently, Associates either wanted the Property or wanted Steve’s to stop operating its landscaping business thereon because it interfered with Associate’s development plans. In early 2008, Associates pressured the Chestnut Ridge Mayor (“Mayor”) to shut down Steve’s business, and the Village Board of Trustees (“Trustees”) ordered the Code Enforcement Officer (“Officer”) to issue an appearance ticket to Steve’s for operating without site plan approval.

The Officer issued the ticket under protest, informing the Mayor and the Trustees that it was his opinion that landscaping operation is a permitted use within the LO District and upon the Property. The Officer withdrew the ticket prior to disposition. During the pendency thereof, nevertheless, Steve’s submitted an application to the Chestnut Ridge Planning Board for, among other things, construction of a storage structure. In October 2009, the Chestnut Ridge Planning Board concluded that Steve’s application might need an area variance – but it would not need a use variance for the landscaping business. Steve’s submitted an application to the Chestnut Ridge Zoning Board of Appeals (“Chestnut Ridge ZBA”) for an area variance concerning setbacks for the new structure.

After Steve’s submitted its site plan application and around the time Steve’s submitted the area variance application to the Chestnut Ridge ZBA, the Trustees enacted a local law expressly making landscaping a permitted use within the LO District. However, seemingly as a result of Associates’ input, the local law also provided it did not apply to properties that were the subject of applications filed with the Chestnut Ridge Planning Board prior to its enactment. The trial court noted that it was clear this local law applied only to the Property and “was enacted for no other reason than to benefit [Associates] at Steve’s expense.

Moreover, based upon Associates’ opposition to Steve’s area variance application, the Chestnut Ridge ZBA sought to determine whether the landscaping use is permitted. In September 2011, Steve’s counsel served a Notice of Claim upon the Chestnut Ridge ZBA in connection therewith, and requested to withdraw the area variance application. The Chestnut Ridge ZBA refused and demanded that Steve’s address the issue of their jurisdiction to consider the use issue. Steve’s neither responded nor made further appearances.

Associates, then, requested that the Chestnut Ridge ZBA interpret whether Steve’s landscaping storage is a permitted use. The Chestnut Ridge ZBA obliged, held at least one meeting not open to the public (and without entering executive session) in order to secretly discuss Associates’ request,[1] and hosted a public hearing on the issue. In January 2012, the Chestnut Ridge ZBA issued a resolution that the local law did not apply to the Property and that Steve’s landscaping storage is not a permitted use. Thereafter, Steve’s commenced a hybrid action/proceeding to, among other things, annul the Chestnut Ridge ZBA’s determination.[2]

In Steve’s hybrid case, the trial granted Steve’s petition and annulled the Chestnut Ridge ZBA’s determination on grounds that it is jurisdictionally defective: “ZBA’s have only appellate jurisdiction . . . Here, Steve’s invoked the jurisdiction of the [Chestnut Ridge ZBA] by filing its area variance application. It then withdrew it. The [Chestnut Ridge ZBA] purported to disregard the withdrawal. Other than evidencing [their] bad faith, such refusal had no legal effect.” Moreover, neither Chestnut Ridge nor Associates cite any authority to compel Steve’s to pursue an area variance it no longer desired. When Associates filed its interpretation request, there was nothing for the Chestnut Ridge ZBA to review. Even assuming Steve’s did not withdraw its area variance application, the result would not change because Steve’s – the applicant – sought an area variance; the issue of its use was never before the Chestnut Ridge ZBA, and Associates did not seek to appeal from any pending determination regarding Steve’s use.

The trial court also annulled the Chestnut Ridge ZBA’s determination for violations of the Open Meetings Law, where the board held at least one meeting which was not open to the public and during which the board discussed Associates’ request for a use interpretation concerning Steve’s landscaping business at the Property. The trial court also noted the Chestnut Ridge ZBA’s bad faith: “[H]aving decided to put Steve’s out of business at [Associates’] behest, it is not surprising that [the Chestnut Ridge ZBA] did not want to discuss the same before the public.”

On appeal, the Appellate Division affirmed the annulment of the Chestnut Ridge ZBA’s decision, based upon its non-jurisdiction. Without a determination from the building inspector or other administrative official charged with enforcement of the zoning code, zoning boards are without jurisdiction to consider an application for an interpretation of the code. In addition, although the Appellate Division also found that the record supported a finding that the Chestnut Ridge ZBA violated the Open Meetings Law by hosting a workshop without giving notice of the meeting, Steve’s did not establish good cause to annul the Chestnut Ridge ZBA’s determination on that ground. While improperly noticed, the meeting was open to the public and the determination was adopted at a publicized public meeting and was the subject of a number of prior public meetings.

[1] There is some discrepancy about this meeting; the trial court found it was held in secret, but the appeals court found that the meeting only improperly noticed and actually open to the public.

[2] In 2010, Associates commenced a separate action seeking a permanent injunction against Steve’s operation of its landscaping business at the Property.

]]>https://www.lilanduseandzoning.com/2019/05/06/zoning-boards-cannot-render-determinations-absent-jurisdiction-and-not-all-violations-of-the-open-meetings-law-justify-annulment-or-award/feed/0Court Upholds East Hampton Town ZBA Determination Denying Application for a Natural Resources Special Permithttps://www.lilanduseandzoning.com/2019/04/29/court-upholds-east-hampton-town-zba-determination-denying-application-for-a-natural-resources-special-permit/
https://www.lilanduseandzoning.com/2019/04/29/court-upholds-east-hampton-town-zba-determination-denying-application-for-a-natural-resources-special-permit/#respondMon, 29 Apr 2019 10:00:41 +0000https://www.lilanduseandzoning.com/?p=19479In the Matter of Strandkorb, LLC v. Zoning Board of Appeals of the Town of East Hampton, dated February 11, 2019, the Supreme Court, Suffolk County, upheld the Town of East Hampton Zoning Board of Appeals determination which denied the petitioner’s request to construct a new two story residence with a garage, pool, patio decking, walkways and an upgraded … Continue Reading ]]>In the Matter of Strandkorb, LLC v. Zoning Board of Appeals of the Town of East Hampton, dated February 11, 2019, the Supreme Court, Suffolk County, upheld the Town of East Hampton Zoning Board of Appeals determination which denied the petitioner’s request to construct a new two story residence with a garage, pool, patio decking, walkways and an upgraded septic system.

The subject property, located at 67 Shore Road in Amagansett, is across the street from properties abutting the Atlantic Ocean, and has protected dune land and beach vegetation on the western part of the site. As part of the Subdivision Map of Montauk-On-Sea Lots filed in 1955, the property is only 15,104 square feet in size, pre-exists the B Residential Zoning district in which it lies (the original house also pre-existed zoning) and is an undersized lot. Any disturbance of dune land or beach vegetation requires a Natural Resources Special Permit (“NRSP”) from the Zoning Board of Appeals. The proposed ZBA application sought to demolish the existing 2,600 square foot residence and construct a 3,075 square foot two story residence with a 589 square foot garage, 315 square foot pool and 998 square feet of patio, decking and walkways. The ZBA application sought a NRSP pursuant to Town Code §255-4-20 however, no variances from the Town’s Zoning Code were required in connection with the proposed development. Even though the ZBA noted that “it appears that the applicant has made an effort to design the project so as to minimize the disturbance in the western portion of the property which contains the beach vegetation and dune land habitat characteristics,” the ZBA ultimately denied the application. The ZBA relied upon the Planning Department’s finding that the project constituted an aggressive redevelopment of an environmentally sensitive property and found that the lot area was not “sufficient, appropriate or adequate for the proposed improvements” given that (i) the total lot coverage would increase from 22% to 35%, (ii) the proposed gross floor area of the home was 3,075 square feet where 3,110 square feet is permitted, and (iii) the building coverage would be doubled and only 5 square feet under the maximum allowed. The Board further found that the “overdevelopment of the property is not consistent with the surrounding properties, which are all substandard as to lot size and contain dune land habitat.” The Board also noted that “the surrounding properties consist of mostly soft scape, while the applicant here is proposing mainly hardscape (referring to the proposed decking, walkways and patio).” In response, applicant filed an Article 78 proceeding challenging the Zoning Board’s denial.

The court upheld the Zoning Board of Appeals determination, noting that local zoning board determinations are entitled to “great deference” and will only be set aside by a court if it is illegal, arbitrary and capricious or irrational. Petitioner argued that since the proposed development complied with the dimensions of the zoning code and minimized environmental impacts, the ZBA determination was arbitrary and capricious. However, the court noted that the ZBA found the application did not comply with the NRSP standards set forth in the Town Code. Specifically, the court noted that the proposed application would not maintain the character of the neighborhood or contribute to the orderly growth of the area concluding that the accessory structures would negatively impact the natural features on the lot. Moreover, the court referred to the zoning board’s finding that alternative designs to limit the proposed hard surfaces would lessen potential detrimental impacts to the property. Thus, the court found sufficient evidence in the Zoning Board’s record denying the application and held that the decision had a rational basis and was not arbitrary and capricious. Accordingly, the petition was denied and the Article 78 proceeding was dismissed.